Acquisition of British Nationality by Adoption

We were asked to assist a national of the Philippines who was born in the UK on 17th August 2004 and who was adopted by his grandparents in the Philippines. The individual was not aware whether or not he could apply for British citizenship under section 1(5) of the British Nationality Act 1981 or under section 3(1) of the British Nationality Act 1981. We have advised him that the best option for him was to apply to register as a British citizen under section 3(1) of the British Nationality Act which is a discretionary provision and therefore there was no guarantee it will be granted, but there were good prospects of success.

The child in question was born in the UK whilst his biological mother was in the UK on a visitor’s visa. No father was named on the long form UK birth certificate and the mother was under the age of 18 when her son was born. He returned to the Philippines with his mother after the birth and his grandparents took him to live with them and had cared for him ever since. They formally adopted the child and the adoption was finalised under the domestic law of the Philippines in April 2015. The grandparents were both dual British and Pilipino nationals as the grandmother and grandfather naturalised as British citizens. The grandmother splits her time between the UK and the Philippines, whilst grandad has been residing in the Philippines as a primary carer of our client.

In our legal discussions we considered if the child had an automatic right to citizenship under section 1(5) of the British Nationality Act as it states that where a child is adopted by an Order of the Court in the UK, and at least one of the adoptive parents was a British citizen at the time the Adoption Order was made, then the child would automatically become a British citizen. However, this adoption was carried out in the Philippines and therefore we had to look into the purpose of entitlement to automatic citizenship under section 1(5) and whether the Adoption Order was certified as having been made in accordance with the Hague Convention. The Philippines is a signatory to the Hague Convention which at first glance might have suggested that the route to automatic citizenship was available to our client. However, in order for the child to be British, the final Adoption Order must be certified as having been made in accordance with the terms of the Hague Convention on inter-country adoption. This was not the case here, as the adoption was not certified as such. The adoptive parents were not habitually resident in the UK at the time of the adoption and therefore section 1(5) did not apply.

What is Habitual Residence?

Habitual residence is a legal concept which is subject to interpretation by the Courts and there is no statutory definition of the term. It all depends on the circumstances and facts of an individual case. Habitual residence is concerned with the quality of residence in a particular place rather than its duration. Given that the grandfather lived in the Philippines with the child, he was clearly not habitually resident in the UK and grandmother split her time between the two countries, so it is highly unlikely that she would be deemed to be habitually resident in the UK. We therefore opted for the registration under section 3(1) and we are pleased to say that we were successful in obtaining the child a certificate of registration as a British citizen in 2022.